Technology: Potential consequences of firing over Facebook

Bob is one of your employees, and he’s a real pain in the neck. He complains about everything — workplace issues, his fantasy football team, the Starbucks barista who spelled his name wrong (again). Bob is never at a loss for an opinion, and he freely shares it. So when one of Bob’s co-workers called in sick last week (for what Bob insists is the hundredth time this month), Bob complained to his manager about his increased workload due to his coworker’s absence. In Bob’s opinion, the manager failed to adequately address the situation, so Bob voiced his displeasure on Facebook. He posted a comment about his co-worker repeatedly calling in sick and his manager’s pattern of “ineptitude” in handling the situation. Bob tagged several of his co-workers in the Facebook post and encouraged his coworkers to provide their opinions on the situation. A few co-workers chimed in about their disdain with the absent co-worker, the additional work the absences caused, and added a few choice words about their “inept” manager. After catching wind of this Facebook activity, Bob’s manager charges into your office and demands that you terminate Bob immediately. Your manager makes a persuasive case that Bob’s Facebook activity is distracting, demeaning, and hurting company morale. So what would you do?

If your knee-jerk answer was to “fire that pain in the neck,” you might just have violated the National Labor Relations Act (NLRA). Generally speaking, NLRA provides that employee social media activity is legally protected when two or more employees act together to improve their terms and conditions of employment — even in circumstances where the employee comments about embarrassing workplace issues. The fact that Bob took to Facebook to communicate with other co-workers about his manager’s handling of a common workplace issue does not affect the protected nature of his communications. Since an employer violates Section 8(a)(1) of the NLRA if it interferes, restrains, or coerces employees in the exercise their protected rights, you or your manager might unknowingly violate the NLRA by disciplining or terminating Bob for engaging in protected activities, threatening to sue Bob for engaging in protected activities, or discharging Bob to prevent future employee discussions of terms and conditions of their employment. So what might happen if you just couldn’t control yourself (or your manager) and Bob was disciplined for his social media activity?

If you terminated or disciplined Bob for his social media activity, he may file an unfair labor charge against your company. The National Labor Relations Board (NLRB) would expeditiously investigate the charge to determine whether formal action should be taken. If the NLRB believes that you may have engaged in an unfair labor practice, then it will file a complaint against your company and require you to respond within ten days. If the NLRB considered your actions to be egregious conduct, however, the NLRB is also authorized to seek an immediate temporary restraining order against your company from a federal district court. The matter would then be referred to an administrative judge for determination.

Upon finding that you committed an unfair labor practice by interfering with Bob’s protected rights, the NLRB may impose various statutory remedies against your company. The NLRB can order you to reinstate Bob, readjust his seniority within the company, provide him any benefits he missed while terminated, and ensure that he retains his same status within the workplace. The NLRB may order Bob’s file be expunged of any record of the wrongful discipline or termination. Furthermore, the NLRB may also order you to compensate him for any backpay he missed due to his unlawful discharge. So, if you think Bob was a real pain in the neck before, just wait and see how much noise he can make after winning his unfair labor charge with the NLRB.

Contributing Author

Heather Melick

Heather Melick is of counsel with Luper Neidenthal & Logan in Columbus, Ohio. She focuses on the areas of complex commercial litigation, appellate work, military...